1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL MADDEN, Successor-in- Case No. 1:18-cv-00255-KES-BAM (PC) Interest to Ryan P. Madden, et al., 12 ORDER DENYING PLAINTIFFS’ MOTION Plaintiffs, TO COMPEL THE PRODUCTION OF 13 DOCUMENTS FROM DEFENDANTS v. (ECF No. 80) 14 HICKS, et al., ORDER RESETTING DEADLINE FOR 15 PLAINTIFFS TO FILE OPPOSITION TO Defendants. MOTION FOR SUMMARY JUDGMENT 16 THIRTY (30) DAY DEADLINE 17 18 I. Introduction 19 Plaintiffs Michael Madden and Kathleen “Kathy” Madden (“Plaintiffs”), as Successors-in- 20 Interest to Ryan P. Madden, are proceeding pro se and in forma pauperis in this civil rights action 21 pursuant to

. This action proceeds against Defendant Hicks for excessive force 22 and assault and battery claims, and against Defendants Silva and Hicks (“Defendants”) for 23 California Bane Act and retaliation claims. 24 On December 4, 2023, Defendants filed a motion for summary judgment on the grounds 25 that Plaintiffs failed to exhaust administrative remedies. (ECF No. 70.) Following Plaintiffs’ 26 motion to stay briefing on Defendants’ motion for summary judgment pursuant to Federal Rule of 27 Civil Procedure 56(d), the Court granted Plaintiffs an extension of time to either file an 28 opposition to the motion for summary judgment or a motion to compel regarding any outstanding 1 discovery requests related to the issue of exhaustion and essential to justify Plaintiffs’ opposition 2 to the motion for summary judgment. (ECF No. 77.) 3 On February 23, 2024, Plaintiffs filed a motion to compel the production of documents 4 from Defendants. (ECF No. 80.) Following an extension of time, Defendants filed an opposition 5 on March 19, 2024. (ECF No. 84.) Following three extensions of time, Plaintiffs’ reply was due 6 on or before August 23, 2024. (ECF Nos. 86, 88, 90.) Plaintiffs have not filed a reply or 7 otherwise communicated with the Court, and the extended deadline to file a reply has expired. 8 The motion to compel is deemed submitted. Local Rule 230(l). 9 II. Plaintiffs’ Motion to Compel 10 Plaintiffs move for an order compelling Defendants to produce materials responsive to 11 Plaintiffs’ First Set of Requests for Production of Documents, originally served on Defendants on 12 May 16, 2023. (ECF No. 80.) At issue are Defendant Silva’s response to Set One of Plaintiffs’ 13 Request for Production of Documents (“RFP”), Request No. 9, as well as Defendant Hicks’ 14 responses to Set One of Plaintiffs’ RFPs, Requests Nos. 7–12 and 17. (Id. at 11.) Specifically, 15 Plaintiffs seek emails from the accounts of Defendants, as well as from the accounts of six other 16 current and/or former employees of the California Department of Corrections and Rehabilitation 17 (“CDCR”), relevant to the question of former Plaintiff Ryan P. Madden’s exhaustion of 18 administrative remedies. Plaintiffs request that Defendants be compelled to immediately produce 19 to them all emails from the relevant email accounts, which contain any of the following terms: 20 (1) Madden; (2) F-62530; (3) F62530; (4) CSP-COR-17-00137; and/or (5) COR-03B-16-12- 21 0757. (Id.) 22 In opposition, Defendants argue that Defendants fully and properly responded to 23 Plaintiffs’ First Set of Requests for Production of Documents, and Plaintiffs’ motion to compel 24 improperly modifies the original requests by reducing the time period to search for responsive 25 documents and with fewer search terms. (ECF No. 84.) Plaintiffs did not propose these 26 modifications to Defendants during discovery and are raising them for the first time in their 27 motion to compel. (Id.) 28 /// 1 A. Legal Standards 2 Under Rule 37 of the Federal Rules of Civil Procedure, “a party seeking discovery may 3 move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 4 37(a)(3)(B). The court may order a party to provide further responses to an “evasive or 5 incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). “District courts have 6 ‘broad discretion to manage discovery and to control the course of litigation under Federal Rule 7 of Civil Procedure 16.’” Hunt v. Cty. of Orange,

(9th Cir. 2012) (quoting 8 Avila v. Willits Envtl. Remediation Trust,

(9th Cir. 2011)). 9 The moving party bears the burden of informing the Court: (1) which discovery requests 10 are the subject of the motion to compel; (2) which of the responses are disputed; (3) why the 11 response is deficient; (4) why any objections are not justified; and (5) why the information sought 12 through discovery is relevant to the prosecution or defense of this action. McCoy v. Ramirez, 13

at *1 (E.D. Cal. 2016); Ellis v. Cambra,

, at *4 (E.D. Cal. 14 2008) (“Plaintiff must inform the court which discovery requests are the subject of his motion to 15 compel, and, for each disputed response, inform the court why the information sought is relevant 16 and why defendant’s objections are not justified.”). 17 In responding to requests for production, a party must produce documents or other 18 tangible things which are in their “possession, custody or control.” Fed. R. Civ. P. 34(a). 19 Responses must either state that inspection and related activities will be permitted as requested or 20 state an objection to the request, including the reasons. Fed. R. Civ. P. 34(b)(2)(B). A reasonable 21 inquiry must be made, and if no responsive documents or tangible things exist, Fed. R. Civ. P. 22 26(g)(1), the responding party should so state with sufficient specificity to allow the Court to 23 determine whether the party made a reasonable inquiry and exercised due diligence, Uribe v. 24 McKesson, No. 08cv1285 DMS (NLS),

, at *2–3 (E.D. Cal. Mar. 9, 2010). 25 Actual possession, custody or control is not required. “A party may be ordered to produce 26 a document in the possession of a non-party entity if that party has a legal right to obtain the 27 document or has control over the entity [that] is in possession of the document.” Soto v. City of 28 Concord,

(N.D. Cal. 1995); see also Allen v. Woodford,

, at 1 *2 (E.D. Cal. Jan. 30, 2007) (“Property is deemed within a party’s possession, custody, or control 2 if the party has actual possession, custody, or control thereof or the legal right to obtain the 3 property on demand.”). 4 B. Discussion 5 At issue are Defendant Silva’s response to Set One of Plaintiffs’ Request for Production 6 of Documents (“RFP”), Request No. 9, as well as Defendant Hicks’ responses to Set One of 7 Plaintiffs’ RFPs, Requests Nos. 7–12 and 17.1 8 RFP No. 9 (Silva) and RFP No. 7 (Hicks): 9 Please identify and produce any and all emails that you have sent and/or received, from 10 December 1, 2016 through May 1, 2023, on you CDCR email account, which contain the 11 following search terms: (1) Madden; (2) F-62530; and/or (3) F62530. 12 RFP No. 8 (Hicks) 13 Please identify and produce any and all emails from the CDCR email account of DAVE 14 DAVEY (former Warden of CSP-COR), that were sent and/or received from January 1, 2015 15 through January 1, 2018, which contain any of the following search terms: (1) Madden; (2) D. 16 Hicks; (3) Hicks; (4) E. Silva; (5) Silva; (6) F-62530; (7) F62530; (8) CSP-COR-17-00137; 17 and/or (9) COR-03B-16-12-0757. 18 RFP No. 9 (Hicks) 19 Please identify and produce any and all emails from the CDCR email account of M. 20 SEXTON (former Chief Deputy Warden of CSP-COR), that were sent and/or received from 21 January 1, 2015 through January 1, 2018, which contain any one of the following search terms: 22 (1) Madden; (2) D. Hicks; (3) Hicks; (4) E. Silva; (5) Silva; (6) F-62530; (7) F62530; (8) CSP- 23 COR-17-00137; and/or (9) COR-03B-16-12-0757. 24 /// 25 /// 26

27 1 As RFP No. 9 (Silva) and RFP No. 7 (Hicks) were identical, and Defendants provided nearly identical responses to all RFPs at issue in the motion to compel, for the sake of brevity the Court 28 reproduces Plaintiffs’ requests in consolidated form and Defendants’ responses only once. 1 RFP No. 10 (Hicks) 2 Please identify and produce any and all emails from the CDCR email account of B. ODLE 3 (former Associate Warden-Housing at CSP-COR), that were sent and/or received from January 1, 4 2015 through January 1, 2018, which contain any one of the following search terms: (1) Madden; 5 (2) D. Hicks; (3) Hicks; (4) E. Silva; (5) Silva; (6) F-62530; (7) F62530; (8) CSP-COR-17-00137; 6 and/or (9) COR-03B-16-12-0757. 7 RFP No. 11 (Hicks) 8 Please identify and produce any and all emails from the CDCR email account of M. L. 9 OLIVEIRA (one time Correctional Counselor II and Appeals Coordinator at CSP-COR), that 10 were sent and/or received from January 1, 2015 through January 1, 2018, which contain any one 11 of the following search terms: (1) Madden; (2) D. Hicks; (3) Hicks; (4) E. Silva; (5) Silva; (6) F- 12 62530; (7) F62530; (8) CSP-COR-17-00137; and/or (9) COR-03B-16-12-0757. 13 RFP No. 12 (Hicks) 14 Please identify and produce any and all emails from the CDCR email account of F. 15 MUNOZ (Lieutenant at one time at CSP-COR), that were sent and/or received from January 1, 16 2015 through January 1, 2018, which contain any one of the following search terms: (1) Madden; 17 (2) D. Hicks; (3) Hicks; (4) E. Silva; (5) Silva; (6) F-62530; (7) F62530; (8) CSP-COR-17-00137; 18 and/or (9) COR-03B-16-12-0757. 19 RFP No. 17 (Hicks) 20 Please identify and produce any and all emails from the CDCR email account of C. 21 GUTIERREZ (Correctional Officer at CSP-COR, responsible for conducting the investigation 22 into the circumstances surrounding Ryan Madden’s placement into administrative segregation on 23 December 5, 2016), that were sent and/or received from January 1, 2015 through January 1, 2018, 24 which contain any one of the following search terms: (1) Madden; (2) D. Hicks; (3) Hicks; (4) E. 25 Silva; (5) Silva; (6) F-62530; (7) F62530; (8) CSP-COR-17-00137; and/or (9) COR-03B-16-12- 26 0757. 27 /// 28 /// 1 Response to RFP No. 9 (Silva) and RFP Nos. 7–12 and 17 (Hicks) 2 Defendant objects to this request on the following grounds: (1) it is overbroad as to scope 3 and time; (2) it is also overly burdensome because it seeks such a broad time frame and requests a 4 search based on terms that may return a large number of unrelated and irrelevant documents that 5 must be reviewed for responsiveness; (3) due to its over breath it requests documents that are 6 subject to attorney client and attorney work product privileges; (4) it seeks documents that are 7 irrelevant to any party’s claim or defense and is not proportional to the needs of the case; and 8 (5) it requests documents protected by the official-information privilege, confidentiality, and a 9 right to privacy for parties and non-parties (

, 832.8; Cal. Civ. Code 10 § 1798 et. seq; Cal Evid. Code §§ 1040, 1043;

, 6254; Cal. Code 11 Regs. tit. 15, §§ 3321, 3370, 3450). To the extent it request documents about related and 12 unrelated confidential investigations and/or review, the disclosure of the requested information 13 may jeopardize the safety and security of the institution, other inmates, and correctional staff if 14 released. To the extent it requests confidential investigations, it could also jeopardize the ability 15 of staff to investigate those and future matters. 16 Without waiving these objections and expressly subject thereto, Defendant responds that 17 after a reasonable search and diligent inquiry, Defendant has received approximately 36,000 18 emails that are potentially responsive to [RFP No. 9 (Silva) and RFP Nos. 7–12 and 17 (Hicks)]. 19 Defendants are currently reviewing these documents for any potential confidential and/or 20 privileged information, and will produce any responsive documents on a rolling basis after 21 completing their review for privileged or confidential information. 22 Ruling on RFP No. 9 (Silva) and RFP Nos. 7–12 and 17 (Hicks) 23 Plaintiffs’ requests are overly broad, unduly burdensome as to time, scope, and content, 24 and not proportional to the needs of the case. Despite Plaintiffs’ attempts to provide additional 25 search terms or to narrow the time frame of their requests, Plaintiffs may not modify their original 26 requests for production using a motion to compel. O’Connor v. Cal. Dep’t of Corr. & Rehab, 27 Case No. 2:19-cv-0658 KJM KJN P,

at *6, (E.D. Cal. Sept. 13, 2021) (citing 28 Lopez v. Florez, Case No. 1:08-cv-01975-LJO-JLT,

at *3 (E.D. Cal. Mar. 19, 1 2013)); Harris v. Kernan, Case No. 2:17-cv-0680 TLN KJN P,

at *3, n.3 2 (E.D. Cal. Aug. 1, 2019) (plaintiff cannot amend discovery request within motion to compel); 3 Hisle v. Conanon, Case No. 1:17-cv-01400-LJO-SAB,

at *7 (E.D. Cal. Sept. 4 14, 2018) (plaintiff seeking to narrow discovery request must do so by way of new request, not 5 motion to compel). 6 As propounded, Plaintiffs’ provided search terms and time frame returned approximately 7 36,000 potentially responsive and non-duplicative documents, out of a total of 71,786 documents 8 (including emails and any attachments). Defense counsel’s initial review found that the search 9 terms provided by Plaintiffs yielded thousands of irrelevant results, such as emails related to 10 employees and inmates who shared the decedent’s last name, or no results, such as emails 11 containing the search term “CSP-COR-17-00137” relating to the administrative grievance 12 process. Plaintiffs’ argument that the requests are not burdensome in terms of scope because only 13 a handful of search terms were provided, fails in light of the quantity of documents returned. 14 The Court cannot compel a party to produce documents that do not exist. Defendants 15 stated that after a reasonable search and diligent inquiry, they received approximately 36,000 16 potentially responsive and non-duplicative documents, out of a total of 71,786 documents 17 (including emails and any attachments), and after an initial review by counsel, they paused their 18 review based on their reasonable belief that the remaining emails were either non-responsive, 19 irrelevant, or only relevant for purposes of merits-based fact discovery. In responding to 20 Plaintiffs’ motion to compel, Defendants acted in good faith by re-reviewing the documents using 21 additional search terms not proposed by Plaintiffs and again found no emails related to the 22 exhaustion issue. While Plaintiffs may believe that there are relevant documents contained in the 23 36,000 emails, in the absence of legal or fact-based substantive deficiencies, they are required to 24 accept the response provided. Mere distrust and suspicion regarding discovery responses do not 25 form a legitimate basis to further challenge responses which are facially legally sufficient. In the 26 absence of evidence to the contrary, which has not been presented here, Plaintiffs are required to 27 accept Defendants’ response that no responsive documents exist. See Mootry v. Flores,

3587839, *2 (E.D. Cal. 2014). 1 Moreover, signed discovery responses are themselves certifications to the best of the 2 person’s knowledge, information, and belief formed after a reasonable inquiry, Fed. R. Civ. P. 3 26(g)(1)(B) (quotation marks omitted), as are other signed filings presented to the Court, see Fed. 4 R. Civ. P. 11(b). See also Fed. R. Civ. P. 33(c). Further, Defendants are required to supplement 5 their discovery responses should they learn that their responses were incomplete or incorrect, if 6 the incomplete or incorrect information has not otherwise been made known to Plaintiffs. Fed. R. 7 Civ. P. 26(e)(1) (quotation marks omitted). 8 Finally, in light of the breadth of Plaintiffs’ requests and Defendants’ assertion that 9 despite engaging in a diligent and reasonable search for any responsive information, no 10 responsive documents were located, the Court finds it unnecessary to address Defendants’ 11 assertions of attorney-client and official information privileges. Plaintiffs’ motion to compel is 12 denied.2 13 III. Order 14 Based on the foregoing, IT IS HEREBY ORDERED as follows: 15 1. Plaintiffs’ motion to compel, (ECF No. 80), is DENIED; and 16 2. Within thirty (30) days from the date of service of this order, Plaintiffs shall file an 17 opposition or statement of non-opposition to Defendants’ October 3, 2023 motion for 18 summary judgment, (ECF No. 70). 19 IT IS SO ORDERED. 20

21 Dated: November 19, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22

23 24 25 26

27 2 The instant order does not preclude Plaintiffs from renewing any requests for production (or related motions to compel) related to the merits of this action, as necessary and appropriate, 28 following resolution of Defendants’ motion for summary judgment on the issue of exhaustion.